EPIC v. FBI - Privacy Assessments

Top News

Senators Seek Answers on Use of Cell Phone Surveillance Devices: Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Ranking Member Chuck Grassley (R-Iowa) have asked Attorney General Eric Holder and Secretary of Homeland Security Jeh Johnson several questions about the government’s use of cell site simulators or “Stingray” devices to track cell phones. According to the letter, the Senators previously asked FBI Director James Comey about the FBI’s use of cell site simulators and, after two briefings with the Senators, the FBI announced a new policy that it would obtain search warrants before using the devices, subject to certain exceptions. The new letter raises questions about the broader use of cell site simulators by other law enforcement agencies and their impact on the privacy of innocent individuals. EPIC filled a lawsuit under the Freedom of Information Act in 2012, seeking information about the FBI’s use of cell site simulators and, in particular, what legal process the agency required before deploying the technology. As a result of EPIC’s lawsuit, more than 4,000 pages of partially-redacted FBI records were released to the public. For more information, see EPIC v. FBI - Stingray / Cell Site Simulator. (Jan. 2, 2015)

Federal and State Wiretaps Up 5% in 2013 According to Annual Report, But Stats Don't Support FBI Claims of "Going Dark": The Administrative Office of the U.S. Courts has issued the 2013 Wiretap Report, detailing the use of surveillance authorities by law enforcement agencies. This annual report, one of the most comprehensive issued by any agency, provides an insight into the debate over surveillance authorities and the use of privacy-enhancing technologies. In 2013, wiretap applications increased 5%, from 3,576 to 3,395. Authorities encountered encryption during 41 investigations, but encryption prevented the government from deciphering messages in only 9 cases. This statistic contradicts claims that law enforcement agencies are "going dark" as new technologies emerge. Of the 3,074 individuals arrested based on wiretaps in 2013, only 709 individuals were convicted based on wiretap evidence. EPIC has repeatedly called on greater transparency of FISA surveillance, citing the Wiretap Report as a model for other agencies. EPIC also maintains a comprehensive index of the annual wiretap reports and FISA reports. For more information, see EPIC: Title III Wiretap Orders, EPIC: Wiretapping, and EPIC: Foreign Intelligence Surveillance Act. (Jul. 29, 2014)

EPIC, EFF, ACLU, Defending Dissent, and a coalition of over 30 organizations have urged Attorney General Holder to immediately conduct a privacy assessment of the FBI's proposed "Next Generation Identification" system. NGI is a massive database that includes biometric identifiers, such as digitized fingerprints and facial images, of millions of Americans. The system is set to go fully operational despite a required privacy assessment. EPIC previously sued the FBI to obtain details about the system. According to a FOIA document obtained by EPIC, the FBI accepts a 20% error rate for facial recognition searches of the Next Generation Identification database. Last year, EPIC also obtained documents from the FBI regarding the use of facial recognition on state DMV photos. For more information, see EPIC's Spotlight on Surveillance on FBI's Next Generation Identification Program.

The Senate Judiciary Committee's oversight hearing of the FBI will take place of Wednesday, May 21. This is the first FBI oversight hearing since James Comey took over as Director. At the last oversight hearing, Director Mueller admitted that the FBI uses drones for domestic surveillance. The FBI promised to establish privacy guidelines but has failed to do so. The FBI has also failed to address the privacy implications of license plate readers and facial recognition technology. The FBI's Next Generation Identification program, a massive biometric system, is set to go fully operational this year; yet the agency has not established civil liberties safeguards. The database will employ facial recognition, iris recognition, and voice recognition. Documents obtained by EPIC under the FOIA indicate the agency is prepared to accept a 20% error rate for recognition techniques. For more information, see EPIC v. FBI - Next Generation Identification.

EPIC's Spotlight on Surveillance Project returns to put the spotlight on the Federal Bureau of Investigation's Next Generation Identification program. A billion dollar project to increase the Bureau's ability to collect biometric identifiers on millions of individuals in the United States. The FBI is currently adding facial, iris, and voice identification techniques that will greatly increase the Bureau’s ability to pursue mass surveillance. EPIC is pursuing a Freedom of Information Act lawsuit to learn more about the program. Many of the techniques now being deployed in the US were developed by the US Department of Defense for war zones. EPIC has urged greater Congressional oversight of the program and new privacy safeguards. See EPIC's Spotlight on Surveillance on FBI's Next Generation Identification Program.

Former President of South Africa Nelson Mandela has died. He is revered in the US and around the world for helping to bring about the end of apartheid, for leading his country into a new era, and for championing the cause of human rights. Until 2008, Mr. Mandela, a member of the African National Congress and a winner of the Nobel Peace Prize, also appeared on the US "Terrorist" Watch List. Documents obtained by EPIC under the Freedom of Information Act in 2012 revealed a broad legal standard that allows the US to place someone on the Terrorist Watch List virtually forever. Mr. Mandela's name was taken off the list in 2008 by a formal act of Congress. Approximately 700,000 people are currently tracked by the US Terrorist Screening Center. For more information, see EPIC: FBI Watchlist (National Terrorist Screening Center) and EPIC: Mandela and Privacy.

The Federal Bureau of Investigation has exempted the FBI Data Warehouse System, from important Privacy Act safeguards. The database ingests troves of personally identifiable information including race, birthdate, biometric information, social security numbers, and financial information from various government agencies. The database contains information on a surprisingly broad category of individuals, including "subjects, suspects, victims, witnesses, complainants, informants, sources, bystanders, law enforcement personnel, intelligence personnel, other responders, administrative personnel, consultants, relatives, and associates who may be relevant to the investigation or intelligence operation; individuals who are identified in open source information or commercial databases, or who are associated, related, or have a nexus to the FBI’s missions; individuals whose information is collected and maintained for information system user auditing and security purposes." The Federal Bureau of Investigation has exempted these records from the notification, access, and amendment provisions of the Privacy Act. Earlier this year, EPIC opposed the Automated Targeting System, another massive government database that the Department of Homeland Security exempted from Privacy Act provisions. For more information, see EPIC: The Privacy Act of 1974 and EPIC: Automated Targeting System.

As the result of a Freedom of Information Act request, EPIC has obtained more than 650 pages of documents related to the PATRIOT Act. EPIC had requested information related to the FBI's abuse of PATRIOT Act authorities and documents concerning the 2009 sunset of the PATRIOT Act. The documents disclosed by the FBI include training presentations, answers to questions from Senators Leahy and Specter, and a list of reporting requirements. In an answer to Senator Leahy, the FBI stated that while it would discontinue the use of exigent letters, which the Inspector General had previously noted as a frequent source of abuse, the agency planned to continue its use of the emergency disclosures provision of the Electronic Communications Privacy Act. For more information, see EPIC: USA PATRIOT Act.

In celebration of Sunshine Week, EPIC published the EPIC FOIA Gallery: 2012. The gallery highlights key documents obtained by EPIC in the past year, including the Federal Bureau of Investigation's watch list guidelines, records of the Department of Homeland Security's social media monitoring program, Google's first Privacy Compliance Report, records detailing the government's FAST scanning program, records of the FBI's surveillance of Wikileaks supporters, and DHS records detailing the use of body scanners at the U.S. border. EPIC regularly files Freedom of Information Act requests and pursues lawsuits to force disclosure of critical documents that impact privacy. EPIC also publishes the authoritative FOIA litigation manual. For more, see EPIC Open Government and EPIC Bookstore: FOIA.

The Department of Homeland Security has released the 2011 Annual Data Mining Report. The report must include all of the Agency's current activities that fall within the legislative definition of "data mining." Among other things, this year's report references the Agency's programs to profile individuals entering or leaving the country to determine who should be subject to "additional screening." A FOIA request by EPIC in 2011 revealed that the FBI's standard for inclusion on the list is "particularized derogatory information," which has never been recognized by a court of law. The report also provides information on Secure Flight and Air Cargo Advanced Screening. For more information, see EPIC: FBI Watch List FOIA and EPIC: DHS Privacy Office.

EPIC has obtained documents that reveal new details about standards for adding and removing names from the FBI watch list. The documents were obtained as the result of an EPIC Freedom of Information Act request to the Federal Bureau of Investigation. The FBI's standard for inclusion on the list is "particularized derogatory information," which has never been recognized by a court of law. Also, individuals may remain on the FBI watch list even if charges are dropped or a case is dismissed. The New York Times broke the story and posted the documents obtained by EPIC. For more information, see EPIC: FBI Watch List FOIA and EPIC: Open Government.

The Department of Justice Office of the Inspector General has issued a report on the FBI's use of "exigent letters" and other means to obtain telephone records from three unnamed phone companies. The 300-page report concludes that many of the FBI's practices "violated FBI guidelines, Department policy," and the Electronic Communications Privacy Act. The report also found that "the FBI sought and acquired reporters' telephone toll billing records and calling activity information" through improper means. The report concludes that "the FBI's initial attempts at corrective action were seriously deficient, ill-conceived, and poorly executed" and makes several recommendations for improvement. In a 2007 letter to the Senate Judiciary Committee, EPIC recommended that the FBI's National Security Letter authority be repealed. For more information, see EPIC National Security Letters.

In a report to Congress, the Justice Department revealed a substantial increase in the use of National Security Letters to acquire information on American citizens without court order. In 2008, the FBI made 24,744 NSL requests pertaining to 7,225 persons compared to 16,804 requests pertaining to 4,327 persons in 2007. The report also detailed 2,082 applications by the FBI to the Foreign Intelligence Surveillance Court for authority to conduct surveillance and physical searches. An earlier audit had revealed that some "blanket-NSLs" did not document the relevance of the information sought to a national security investigation and the statistics were not reported to the Congress. For more information, see EPIC's Page on Foreign Intelligence Surveillance Act, National Security Letters, and Wiretapping.

Background

On June 4, 2014, EPIC filed a Freedom of Information Act (FOIA) request with the Federal Bureau of Investigation (FBI) for all its Privacy Impact Assessments (PIAs) that are not currently publicly available as well as all the Initial Privacy Assessment (IPA) and Privacy Threshold Analysis (PTA) documents since January 2007. The PTAs, and later the IPAs, are used to determine whether a more thorough PIA is required for the use of new information technology.

Over the past several years, the FBI has indicated it was going to do a number of PIAs that of the writing of this FOIA request are not publicly available. On July 18, 2012, the Senate Subcommittee on Privacy, Technology and the Law held a hearing on "What Facial Recognition Technology Means for Privacy and Civil Liberties". At that hearing, Jerome Pender, the Deputy Assistant Director of the Information Services Branch for Criminal Justice Information Services Division of the FBI, was one of the witnesses. In his statement for the record, Mr. Pender stated, "the 2008 Interstate Photo System PIA is currently in the process of being renewed by way of Privacy Threshold Analysis (PTA), with an emphasis on Facial Recognition. An updated PIA is planned and will address all evolutionary changes since the preparation of the 2008 IPS PIA." No updated PTA, IPA, or PIA is publicly available regarding the FBI's use of facial recognition technology.

On June 19, 2013, the Senate Judiciary Committee held a hearing on "Oversight of the Federal Bureau Investigation." During the hearing, FBI Director Robert Mueller had the following exchange with Senator Chuck Grassley:

Sen. Grassley: Does the FBI own or currently use drones and if so, for what purpose?

Director Mueller: Yes, and for surveillance.

Later during that same exchange, Senator Grassley asked whether the FBI uses drones for domestic surveillance and whether the FBI had considered the privacy impact of its use of drones.

Sen. Grassley: So instead of asking a question, I think I can assume since you do use drones, that the FBI has developed a set of policies, procedures, and operational limits on the use of drones. And whether or not any privacy impact on American citizens?

Director Mueller: We are in the initial stages of doing that. I will tell you that our footprint is very small, we have very few, and of limited use, and we are exploring not only the use but also the necessary guidelines for that use.

Sen. Grassley: Does the FBI use drones for surveillance on U.S. soil.

Director Mueller: Yes.

No PTA, IPA, or PIA is publicly available regarding the FBI's use of drones.

In FOIA documents received by EPIC last year, an email from early 2012 indicates that the FBI is required to do a PIA for its license plate reader ("LPR") program and make the document publicly available. A separate email indicated a draft PIA existed for the LPR program. Two years later, no PTA, IPA, or PIA for the FBI's LPR program is publicly available.

The E-Government Act of 2002 requires agencies to perform Privacy Impact Assessments for new information technology collects personally identifiable information. As the Department of Justice notes in its guidance to DOJ components, the PIA "helps promote trust between the public and the Department increasing transparency of the Department’s systems and missions."

EPIC's Interest

EPIC has long worked to bring transparency and accountability to the efforts of law enforcement to use new surveillance and information technology that collects and stores personal information about citizens. EPIC previously requested FOIA documents regarding the FBI’s Facial Analysis Comparison and Evaluation (FACE) Services unit. In response to the FOIA request, EPIC received a PTA that indicated a PIA was required by the E-Government Act, but no PIA is publicly available for the FACE Services unit.

In June 2013 comments to the Department of Homeland Security, EPIC urged DHS to conduct a comprehensive privacy impact assessment on the Office of Biometric Identity Management’s plan to collect biometrics at ports of entry to the United States. More recently, EPIC organized a coalition letter to the Attorney General opposing the expansion of the FBI’s Next Generation Identification program and urging the Justice Department to conduct a Privacy Impact Assessment on the program before moving forward.

Privacy assessments are a critical part of assessing the level of intrusiveness new technologies could have on ordinary citizens. The assessments are required by law and provide transparency to the public. EPIC’s FOIA litigation is designed to reveal where this transparency is lacking and highlight those privacy-evasive programs that still lack proper assessments of their impact on privacy.